In the latest episode of Ropes & Gray’s alumni podcast series, Alumni @ RopesTalk, IP litigation partner Matt Rizzolo interviews Alex Roberts, who left the firm eight years ago and is now an associate professor at the University of New Hampshire School of Law. In this lively conversation, Alex gives a vivid picture of her life as a professor—from teaching courses on trademark law and the intersection of pop culture and the law, to publishing cutting-edge scholarship about deceptive practices in influencer marketing. Reflecting on her time at Ropes & Gray, Alex also shares how her experience as an associate at Ropes & Gray helped develop her interest in—and prepare her well for—a career in teaching.
Matt Rizzolo: Hello. Welcome to the latest edition of the Ropes & Gray alumni podcast. I'm Matt Rizzolo, an IP litigation partner, based in our Washington, D.C. office. Today I'm joined by my friend and Ropes & Gray alum, Alex Roberts. Alex and I were summer associates together back in 2007, and she then began her career as a litigator in the New York office, where she started a long love affair with the Lanham Act. Today, Alex is an associate professor at the University of New Hampshire Franklin Pierce School of Law, where she teaches and writes in the areas of trademark and false advertising law, entertainment law contracts, and law in literature. Alex, it's great to see you, and thanks so much for being here. Let's get started with your post-Ropes & Gray career. How did you find your way to academia?
Alex Roberts: Sure, so I am a Ph.D. dropout. My original plan was to be an English professor, and then I wound up in law school. By the time I started at Yale, I had in the back of my mind that maybe I would try to pursue academia at some point. So I spent about four years at Ropes and tried to keep writing a little bit on the side, and then at some point I felt ready to make the leap and I applied for a couple of fellowships and VAP (Visiting Assistant Professor) positions. And I wound up as a VAP at BU teaching trademark law, and then I made my way over to UNH.
Matt Rizzolo: What was the most challenging thing about going back to law school from a law firm?
Alex Roberts: I think the independence was the most surprising. Coming from a big firm where there's a lot of supervision – usually if you're a junior associate, you've got a mid-level, you've got a senior on the team, you've got a partner looking over everything you do, checking up on you, making sure you don't make mistakes – so there are a lot of levels of approval and sign off that things go through. And then I was dropped into an environment where nobody was checking up on me. Nobody said, "Hey, I need to see your syllabus. I need to sit in on your class and make sure you're doing a good job. I want to look at the research that you're doing and see if it fits with the strategic plan." So there was none of that. That feedback is available in academia if you seek it out and I have, so it's easy to find mentors and ask for help with teaching, and research and things like that. But if you don't seek it out, you just have a lot of freedom, so that was an interesting adjustment.
Matt Rizzolo: After BU, you eventually found your way up the road to UNH. How did that come about?
Alex Roberts: I went on the tenure-track teaching market, which is a whole thing that I'm happy to talk about if any other alumni of Ropes are interested in law teaching, you're welcome to reach out. I had a couple of tenure-track offers, but I really desperately wanted to stay in New England – that was where my family was, and so I joined UNH first as the director of the IP center. So I was on the faculty, I was teaching, but I was also in this other kind of role running a program. And then a couple of years later, there was a tenure-track opening and I applied, and they did a national search and I was very fortunate to be able to move into that role and stay where I was.
Matt Rizzolo: Being a law professor is not exactly a traditional nine-five job, right? What is your day-to-day like?
Alex Roberts: I basically have two different kinds of days. Two or three days a week, I wake up early and I drive to campus, and I teach one or two, or however many classes. And then I really save the rest of the day for meetings with students, office hours, students I'm advising on independent studies, students I'm coaching in the trademark moot court, faculty meetings, meetings with committee members, and just lunches with colleagues. And so those on-campus days are really packed and really social. And then the other couple of days a week, those are my work from home days, and I roll out of bed and I can be extremely productive, not talk to anybody all day. Those are the days that I work on my scholarship and I work on my class prep, and I'm able to just get a lot done. That's a really nice fit with my personality, and that's also something that works with a longer commute.
Matt Rizzolo: It seems like it really is a nice mix. You're able to change things up day-to-day so you don't get dragged into the monotony of anything, I guess.
Alex Roberts: It definitely stays exciting. This semester, Tuesday is my crazy long day. I'm actually teaching on two different campuses. I go to Concord, New Hampshire in the morning, and I teach trademarks. And then I jump back in my car and I go to the main campus in Durham, where I'm teaching an undergrad class called “Pop Culture and the Law,” which is such a blast. Building on my English background, we do some cultural theory (cultural studies kind of stuff), and then I introduce the students to topics like trademark, copyright, First Amendment, right of publicity. So it's a little bit of a survey, not trying to teach them doctrines, but just trying to whet their appetites, get them thinking about the ways in which law intersects with and influences culture and vice versa.
Matt Rizzolo: That's really, really interesting. I knew that you taught that “Pop Culture and the Law” class and I've been fascinated by that for quite some time. How is it different teaching undergrads versus law students? I know for me, one of the things that got me interested in law was taking a law class in undergrad.
Alex Roberts: The undergrads have been great. This is my second time teaching the class. Each class centers on a different topic, a different pop cultural text – I do a class on Comic-Con, I do a class on Beyoncé's “Lemonade,” I do a class on tattoos, I do a class on emojis, I do a class on Grumpy Cat, I do one on the Kardashians’ Instagram feeds. We come at it from a lot of different angles and we get to think about some of the branding issues as well as these different intersections with, and things happening behind the scenes when it comes to law. So their backgrounds are different and the questions that they're asking are different. We were talking in the Comic-Con class about genericide and I put a slide up with a bunch of terms, and one of the students said, "What's that word under aspirin?" And I looked up at the slide and I said, "Xerox?" And she said, "Yes, I don't know that word. I've never seen that word before." And I was like, “Okay.” When you're talking about pop culture and you're talking to 18-year-olds, you have to adjust your frame of reference, whereas the law students are a little bit closer to my age, a little bit more similar frames of reference. Our law students are really impressive and I think they're always thinking ahead to client relationships and client service, and, “How would I handle this particular question if I were to do it in my working life?” They do externships and they do summer associateships, and so they're thinking in these really practical terms, which is great. And the undergrads don't have that kind of perspective, so they're just asking these really big picture questions. I started talking on the first day and somebody said, "Well, what's the difference between copyright and trademark?" And I was like, "Yes, that is where we need to start. Okay, let's take ten steps back."
Matt Rizzolo: Do the undergrads tend to ask more completely random hypotheticals? "Could you sue for this? What about this?"
Alex Roberts: No, I have plenty of law students who do that. Yes, the undergrads maybe do a little bit more free-associating, but they're really diligent. They're there paying attention, taking notes and putting things together in ways that I've been really impressed by. I wasn't sure what to expect and so that's been great.
Matt Rizzolo: What's been your favorite class to teach?
Alex Roberts: They all have a little something different to love. Trademarks is really my bread and butter, that's where most of my scholarship has been. I've taught that class, I think, ten times – I taught it at BU, at Northeastern, I've taught an online version, I've taught at UNH every year. In some ways that's my favorite, in that core sense. Entertainment law I teach as a seminar, so that's really nice because I usually have ten or 12 students, they're 2Ls and 3Ls, sometimes foreign grad students, and they do these independent research projects on topics that they choose. And they kind of draw on their background – I've had dancers, I’ve had singers, all different kinds of performers, choreographers. So they often build on that knowledge that I don't have and they do a really deep dive, and they end up teaching me a lot, so that's been really cool. I've taught first-year contracts, which I love for completely different reasons. I think just being part of students' 1L fall experience when everything is brand new and they're totally overwhelmed, but they're also really cohesive – the class comes together and they bond, and it felt special to be part of that. And then I mentioned the undergrad course, which is just new and fun in a whole bunch of different ways, and I've had so much freedom to create it, put it together and make it what I want to be.
Matt Rizzolo: We've all heard the expression “publish or perish” in regards to academia and you obviously are involved in a lot of different and diverse subject matter areas. What are some of the areas you've focused on recently on the scholarship-side of things?
Alex Roberts: My most recent published piece came out over the summer – it's called "Trademark Failure to Function," and it ran in Iowa Law Review. And this piece is very close to my heart. It's a core trademark article and it's about failure to function doctrine, so the very basic threshold requirement that in order to earn protection as a trademark or trade dress, something has to be used in a trademark way in order for consumers to recognize it, to understand that it's functioning as a trademark. And there are certain kind of indicators that we can look for that help us say, "Yes, something's being used in a trademark way," or, "No, it isn't." But a couple of things that I focused on in the paper – one is that I think there's a tendency to pay a lot more attention to distinctiveness, inherent and acquired distinctiveness, and ignore the role of use, the way in which something is used. But that interacts with distinctiveness, so that actually influences the distinctiveness analysis in a number of ways. So what I really advocate in the article is just for courts, and for the USPTO, and for lawyers to pay more attention. And the piece has made a pretty big splash, so I have had a lot of feedback from practitioners, and it's great to do work that isn't just pie in the sky theory that other professors read, but that actually seems to have an impact on the way that people argue before the TTAB, for example.
Matt Rizzolo: That's fascinating. So what you're saying is that people who see some new word hit the lexicon, some new slogan, they shouldn't go rush to the PTO to try and register it – that's not going to fly?
Alex Roberts: They can, but they have to use it as a trademark, right? And putting it right on the front of a t-shirt in huge font isn't necessarily using it as a trademark. I'm putting the finishing touches right now on an article called "False Influencing," which is my first foray into false advertising scholarship. So the piece looks at influencer marketing and explores how it works, and why it's such fertile ground for deceptive practices. And it advocates for private companies to sue each other under the Lanham Act to curb misleading statements that their competitors make via the influencers whom they hire and pay.
Matt Rizzolo: That's really interesting. So as someone who does a lot of work in the International Trade Commission, which has a similar unfair competition statute to the Lanham Act, that's something that is somewhat music to my ears. Although I imagine that some companies in those areas might be a bit hesitant to file such claims for the glass house's problem, if you will.
Alex Roberts: Right, exactly. And I think that's been one of the things maybe holding companies back, the other being that they're really just looking to the FTC to take charge and do all the regulation in this area. But influencer marketing maybe started with weight loss teas, and teeth whiteners, and products like that where maybe everybody's over-claiming, but it's been expanding and expanding, and now I'm seeing it for Steinway pianos, and Acura, and different brands of cars. And so everybody's turning now to influencers, whether they are mega influencers like the Kardashians and the Jenners, or whether they're micro influencers, more low- level with followers in the tens of thousands. And there's just not much of a check on what those influencers can say or how they say it. And so it tends to be the case that companies just give them some guidance and then say, "Go off and do your thing and post, and we'll pay you," without monitoring and without really ensuring that the claims that the influencers make are the same kinds of claims that the company would make if they were doing it directly. So that's really my concern. I think there's a lot of opportunity there for deception, so I'd like to see a little bit more attention paid.
Matt Rizzolo: You're a woman teaching in IP law, and that's been an area that has been historically very male dominated, that field. Has this presented any sort of unique challenges for you?
Alex Roberts: That may be true about the IP bar – I think it's less true in academia. So I actually think we have pretty good parity, especially on the trademark and copyright side, a little bit less so when it comes to patents. But some of the founding scholars in my field are women, so Rochelle Dreyfuss at NYU, Jessica Litman at Michigan, Pam Samuelson at Berkeley – those are really some of the founders of the field. And as someone pointed out to me when I first went into teaching, two things happened around the same time. One was that schools across the country suddenly realized they needed IP programs, and the other was that schools started to realize they needed to hire women, so that was a nice confluence where we have a really good distribution. Another thing that's true about IP academics is they happen to be really supportive and really welcoming, so I've found so many great mentors. And I hear that that's not quite as true in certain other areas. There are other conferences for other specialties that people go to that are a little more cutthroat, whereas if you're presenting a trademark paper to a bunch of trademark people, they're going to engage with it in ways that are productive, supportive, kind and really collaborate to help you make something better.
Matt Rizzolo: The IP bar, I've found, can often be a very small world. It sounds like the IP-side of academia is also the same?
Alex Roberts: Yes, we really all know each other, which is nice. We have a whole bunch of conferences that we go to and we see the same faces every time, so we establish some great relationships.
Alex Roberts: I have gone viral a few times. Last year, I was at the International Trademark Association annual meeting in Boston and there was a professor-only lunch, and we were in the room with a couple of executives from Dunkin’ who talked about the rebranding, talked about some other things. And I tend to live tweet in these, so I'll just share quotes and tidbits of the conversation, and broadcast to the world what's going on in these types of presentations. And something that I shared there hit a nerve and that ended up getting picked up by 30 different newspapers, so all of the sudden my tweet was getting published really broadly across the internet, and I think in the Boston Globe and some print publications, and I was getting phone calls. So that was kind of a trip. It's a nice way to get a really broad audience really quickly, when you have something to say.
Matt Rizzolo: How many followers do you have on Twitter?
Alex Roberts: I think about 7,500.
Matt Rizzolo: Very nice. Do you have a specific sort of social media strategy that you employ?
Alex Roberts: Not exactly. I mostly tweet about trademarks, false advertising, and entertainment law. There's probably some personal stuff, anecdotes about my kids interspersed. I try to keep it 80% on topic.
Matt Rizzolo: Let me take you back now to your Ropes days. How did you pick the firm and what group did you start working in? I mentioned earlier you were a litigator.
Alex Roberts: I am a Boston girl and I come from a family of lawyers, so Ropes & Gray was a really obvious choice for me. Chris Austin recruited me and I split my summer back in 2007 between New York and Boston. And then I wound up staying in the New York office for my first two years out of law school, moving over to the Boston office for the next two years. I was mostly in IP litigation, as you mentioned, but I did a little bit of work with IP corporate, and I did a little bit of general litigation. So I got to work with a lot of different partners across offices, which was a blast for me.
Matt Rizzolo: Any favorite Ropes memories?
Alex Roberts: The end of my first year, 2009, we went to the Central District of California for a trial for Nova Biomedical. So that was Jim Badke, Jeanne Curtis, Matt Traupman, Simon Fitzpatrick, Brandon Stroy, Andrew Radsch – that was the team. We camped out, we took over a whole wing of a hotel with our paralegals, and our gear, and our wires, and our files. And that was just round-the-clock prep. And it was like summer camp – it was a lot of fun for me. I learned so much in those three weeks and that was really my truest and best litigation experience.
Matt Rizzolo: Were there any attorneys at the firm who stood out as particularly influencing your career?
Alex Roberts: Yes, I spent most of my last year here actually working with Peter Brody in the D.C. office, even though I was in Boston on some false advertising cases, and that was pretty formative for me. We also co-authored a trademark piece, and we've stayed in touch a little bit. I also really enjoyed everything I got to do with Mark Szpak in Boston. All of his work I think is fascinating and he's just a pleasure to work with. And they're both really good teachers. I think Ropes is full of intellectuals and lawyers who are really interested in asking broader questions, policy questions and theoretical questions, and not just strategy about client service in the moment. And so as somebody who's thinking about going into teaching, that's a pretty cool thing to be around.
Matt Rizzolo: Was there any aspect of working at Ropes that you think helped prepare you for your career teaching?
Alex Roberts: I got a lot of exposure to a lot of things that I talk about now with my students. I got to do some transactional trademark work, some prosecution, some inter partes stuff, that I draw from both in my scholarship and in my teaching, and the litigation that I mentioned. So that's been really useful. But being here was also what kind of revealed to me that I enjoyed practice, but I love teaching, and I just feel like I have found my calling and I'm so happy now where I am. I remember, I was working with Peter and he pulled together a team, and we were going to start a doc review and he gave me 20 first years, junior associates. And he put them in a room and he said, "Okay, so you need to go teach them false advertising law and then you can tell them what to do with the documents." And I said, "Okay," and I started working on a PowerPoint, getting my notes together, and I stood up in front of these 20 first years and I really walked them through Section 43(a)(1)(b), and how does it work when you have a false ad claim under the Lanham Act. And that was my best day – I thought, “Wow, I really love helping these junior lawyers understand the rationale behind what we're doing instead of just saying, ‘Here's some instructions for doc review. These are the things you're looking for. Click on this box when you see those things.’" So to me, that was a little bit of an indicator that my future could be in teaching and that it might be time to start looking for something like that.
Matt Rizzolo: As a full-time professor, what advice would you have for practicing lawyers who are looking to either dabble in teaching as an adjunct or maybe even try to make a career change to teaching full time?
Alex Roberts: Those are pretty different things, although they're related. So I know a lot of Ropes lawyers do teach as adjuncts and they're really good at it. They'll also tell you it's a ton of work. But if you're interested in getting that experience, I think just reach out to the law schools near you and see what they need – let them know what you can offer. And we're very often looking for great adjuncts and that's a really key role to play. And it's really nice for students to be able to have that type of interaction with somebody who's on the ground, doing the work, and also to include that networking piece, so that they're getting to know practicing lawyers who might be helpful when they're ready to look for a job.
Matt Rizzolo: That's always been something that has been a bugaboo for me when I look at how some publications rank law schools. The number of adjuncts is often counted against them, and for me, personally, I thought that that was one of the most valuable things about going to law school in D.C., at GW, where I did, is that the exposure to adjuncts, for all the reasons you just pointed out, these are the people who are doing that work on the ground every day.
Alex Roberts: Yes, absolutely. There's a lot of strangeness and a lot that is objectionable about where those rankings come from, and I think that's a really valid point. So depending on the goals of the institution, depending on what the law school and the students think is worthwhile, there are a lot of reasons to value what adjuncts bring to the table. The other part of the question that you asked was about full-time career law teaching. There are a lot of resources out there now. So it used to be kind of a secret and you had to be in the know, and you had to go to one of five top schools and be told the secrets. And now, there's a blog called PrawfsBlawg, and there are a lot of great posts and even a lot of articles about breaking into law teaching. It's important to publish, so you've got to have some articles out there, no matter how impressive your practice experience is, you're not going to get a job unless you have at least one, but probably two or three either published articles, or articles that are ready to go out. And that can be a challenge, obviously, to make time for that, but it's also a great test of your ability to produce that kind of scholarly work and also whether you're going to enjoy it. So if you try to write a law review article as a grown adult who is busy in practice and you find it excruciating, then this is not the job for you (with the caveat that there also are opportunities in clinical teaching and those can be a really beautiful fit for people who have practice experience).
Matt Rizzolo: Before we finish out, I'm going to go with a lightning round here to end on some light notes, so fill-in-the-blank questions. My favorite food is…?
Alex Roberts: Ice cream.
Matt Rizzolo: My ideal Friday night is spent…?
Alex Roberts: Lighting the Shabbat candles, having dinner with my family and then chasing my kids around because their current hobby is basically just sprinting around the house as fast as they can.
Matt Rizzolo: I feel your pain there. If I wasn't a law professor, I'd be…?
Alex Roberts: I think I'd either be a trademark lawyer or I'd be an English professor.
Matt Rizzolo: If someone handed me $25,000,000 today, I would…?
Alex Roberts: I would give some of it away, I would put some of it in my kids' college accounts and I think I would keep going to work because I really do enjoy it.
Matt Rizzolo: That's a testament to you loving your work. Ropes & Gray is…?
Alex Roberts: Ropes & Gray is my firm. It will always be my firm. I've been gone almost eight years, which is twice as long as I was here, and yet, somehow, when I talk about it that still seems to be the way I articulate it is as though it remains my firm. So it's a lot of fun to be back today, and I appreciate your inviting me.
Matt Rizzolo: That's great to hear. And before I let you go, I will give you a chance to plug UNH for any alumni who may have children or friends looking to go to law school.
Alex Roberts: Great idea. I love UNH so much. It is a small school, which means we get to know all of the students really well – you can't slip through the cracks. It is absolutely beautiful. We just wrapped up our Black Ice Pond Hockey Tournament right across the street. It's obviously an awesome place to be in an election year, so there's a lot of excitement right now. And intellectual property has been our specialty since we were founded, so it's something that’s always been a strength. We have a really deep bench of IP faculty. We have a lot of students who are passionate about IP. And then in addition to our traditional residential JD program, we have a new hybrid online program where people come in a couple times a year, but they do most of the work online. So if you have a day job in a different city, if you have young children that you're taking care of, you can get a distance JD with some in-person time. And the inaugural class is doing great and we're having a great time. We have about 40, I think we probably 40 more coming in next year. So it's been a grand experiment that I think is going really well. And anybody who has questions about UNH law is welcome to reach out. I'd love to talk to you.
Matt Rizzolo: Alex, thanks. It was great to see you. Thank you so much for joining me here today. Everyone remember, follow her on Twitter and Instagram @lexlanham. For all of our Ropes & Gray alumni out there, please visit our alumni website at alumni.ropesgray.com to stay up-to-date on our alumni happenings, as well as the latest news about the firm and our lawyers. You can also subscribe and listen to this series wherever you regularly listen to podcasts, including on Apple, Google and Spotify. Thanks again for listening.
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